Opinion
J-A28006-18 No. 1792 MDA 2017
12-07-2018
C.D. v. M.M. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 31, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s): 11871-2917 BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.:
M.M. appeals from the trial court's final protection from abuse (PFA) order entered against him in the Court of Common Pleas of Luzerne County. The order, effective for three years, prevents M.M. from having any contact with C.D. and orders M.M. to relinquish all firearms and any firearms' license to the sheriff. After careful review, we affirm based on the opinion authored by the Honorable Tina Polachek Gartley.
See 23 Pa.C.S. §§ 6102-6122 (Protection from Abuse Act ("PFAA")).
At the time of the underlying incident, M.M. and C.D. had been involved in a romantic relationship, from May to June 2017, culminating in M.M. asking C.D. to move in with him. When C.D. refused the offer, M.M. became extremely angry, "[s]creaming [and] thrashing about," frightening C.D. N.T. PFA Hearing, 10/31/17, at 25. C.D. testified that after she rebuked his offer, M.M. cut the phone lines and other wires to her house, placed a half-lit M-80 firecracker under her vehicle, shredded the front tire to her car, contacted C.D.'s employers pleading for them to convince C.D. to return to M.M., contacted C.D.'s oldest daughter pleading to speak with her mom, and grabbed C.D.'s wrist when they were on a boat with friends and told her to be obedient and sit down. Id. at 5-10, 27-28. C.D. also testified that M.M.'s actions "[s]cared [her] t[o] death," that she was still "[t]errified" of him at the PFA hearing, that she had to have a friend help her to take protective measures in her house, and that she changed all the locks to her house and blocked M.M. from every social media account as well as her cell phone. Id. at 11-13.
At the hearing, M.M. denied all the alleged abusive actions recounted by C.D. M.M. testified that he had in fact called some of C.D.'s employers, but only to have them pray for her because "[s]he thinks I'm trying to do something to her or something." Id. at 35.
At the conclusion of the PFA hearing, the trial judge placed the following findings on the record in support of a PFA order:
The court here today has considered the evidence presented in this hearing. The court has to make a credib[ility] determination and sometimes it's on circumstantial evidence as we all understand what that is[.]
The court in consideration of the testimony presented finds that [C.D.] is credible. That [M.M's] not going to abuse, harass, st[al]k or threaten her. This is going to be effective today, the 31st day of October, 2017. It will expire the 31st day of October, 2020.
This is done after a hearing and a decision by the court. The court grants the plaintiff's request for a final protective order. [M.M.] will not abuse, st[al]k, harass, threaten or contact [C.D.] You're excluded from her property. . . .Id. at 40-44.
Or have any contact with any of her employers.
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I'm going to indicate [that the guns in your house are] going to be taken by the sheriff. . . . [Y]ou're not going to be allowed to get another weapon for three years.
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[W]hat I'm doing now is he can't have any contact with you or anybody who you work for. He knows who they are. Stay away.
M.M. filed a timely notice of appeal from the PFA order and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He presents the following issues for our consideration:
(1) Whether the evidence was insufficient to support entry of an Order for Protection from Abuse in that C.D. produced no
evidence M.M. attempted to cause or intentionally, knowingly or recklessly caused her bodily injury or placed her in reasonable fear of imminent serious bodily injury.
(2) Whether C.D. failed to sustain her burden of proof by a preponderance of the evidence as C.D., inter alia, confirmed that M.M. never physically abused her, and never threatened her with physical violence.
(3) Whether the [c]ourt below committed an error of law and/or abuse of discretion in finding C.D. credible and in not finding M.M. credible when C.D. provided repeated inconsistent testimony and testified to numerous unsubstantiated allegations of property damage.
(4) Whether the [c]ourt below committed an error of law and/or abuse of discretion, based on the fact that its finding of abuse was contrary to the credible evidence of record.
(5) Whether the [c]ourt below committed an error of law and/or abuse of discretion by allowing C.D. to present inadmissible evidence over the objection of M.M.'s counsel.
(6) Whether the [c]ourt below committed an error of law and/or abuse of discretion by prejudging liability on behalf of M.M.
before all the evidence was presented, exhibiting bias toward him, and providing leading questions to C.D. to assist her in proving her case, despite the fact that she was represented by counsel?Appellant's Brief, at 3-4.
With regard to PFA orders, our Court:
[R]eviews the evidence in the light most favorable to the petitioner[, here, C.D.] and grant[s] her the benefit of all reasonable inferences, [in] determin[ing] whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence.Fonner v. Fonner , 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on Behalf of Walker v. Walker , 665 A.2d 1252, 1255 (Pa. Super. 1995)). A preponderance of the evidence standard is defined as the greater weight of the evidence, i.e., to tip a scale slightly. Raker v. Raker , 847 A.2d 720, 724 (Pa. Super. 2004). With this standard in mind, we also recognize that it is the trial court's duty to assess the credibility of the witnesses; if the trial court's findings are supported by competent evidence, we are bound by them. Coda v. Coda , 666 A.2d 741, 743 (Pa. Super. 1995).
Abuse is defined under the PFA, in part, as:
The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
23 Pa.C.S. § 6102(a)(2). An individual need not actually suffer serious bodily injury to prove abuse under subsection (a)(2). Rather, the key issue is whether M.M's actions put C.D. in reasonable fear of imminent serious bodily injury. Raker , supra.
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(2) Placing another in reasonable fear of imminent serious bodily injury.
After a review of the parties' briefs, the certified record, and the relevant case law and statutory authority, we affirm the trial court's PFA order based on the well-written opinion authored by the Judge Gartley. We instruct the parties to attach a copy of Judge Gartley's decision in the event of further proceedings in the matter.
Although this case was originally heard by the Honorable Linda K.M. Ludgate, she was no longer assigned to the Luzerne County trial court bench after she issued the PFA order and M.M. filed his notice of appeal. However, because Judge Ludgate made findings of fact on the record at the PFA hearing, we find that Judge Gartley's decision adequately addresses and disposes of M.M.'s issues on appeal.
Order affirmed.
Judge Musmanno joins this Memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/07/2018
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